Criminal - Search Warrants. R. v. Neill
In R. v. Neill (Ont CA, 2023) the Court of Appeal considered the effect of outdated and jurisdiction-exceeding text of a search warrant form, and the corrective application of the doctrine of 'severance':
 We consider first the language in the search warrant form. As noted above, the warrant was issued in order to seize the Blackberry from the police property bureau and transfer it to the Tech Crimes Unit for forensic analysis. The warrant form in this case (“Form 5”) included language authorizing the police to seek “evidence in respect to the commission, suspected commission or intended commission of an offence under the Criminal Code” (emphasis added to show the impugned language). However, the offences for which the warrant was issued were particularized to specify possession of child pornography and making available child pornography, “to wit: graphic computer files”, “on or between July 31, 2013 and December 23, 2013”. The search warrant also contained on its face terms and conditions specifying that the warrant authorized analysis of the Blackberry for data involving the listed offences, and included direction as to the types of data the police were authorized to search for. The specific offences and the terms and conditions were included in appendices A and B to the search warrant. These appendices formed part of the search warrant order. They were specifically referred to in the Form 5 search warrant order signed by the issuing justice. The trial judge found that copies of appendices A and B were attached to the search warrant as issued.. R. v. Sureskumar
 In R. v. Branton (2001), 2001 CanLII 8535 (ON CA), 154 C.C.C. (3d) 139 (C.A.), at para. 35, this court held that language on a search warrant form referring to the “suspected commission or intended commission of an offence” exceeded the statutory power of search authorized by s. 487 of the Criminal Code, and rendered the search warrant invalid on its face.
 Before the trial judge, the Crown conceded that, in light of Branton, the form used was in error. However, the Crown argued that the Information to Obtain (the “ITO”) clearly specified in Appendix A that the affiant “had reasonable grounds that the items in Appendix A [the Blackberry] will be found at [the police property bureau]”, thus, specifying the constitutional minimum standard.
 The trial judge found that the police conduct in using the outdated search warrant Form 5 was “careless”. However, he found that, on the record before him, the error was harmless because there was no risk that the overbroad wording on the Form 5 allowed for an overbroad search. The officer who was the informant for the ITO, and who attended pursuant to the warrant to seize the Blackberry from the property bureau and transfer it to the Tech Crimes Unit, was the lead officer on the investigation and one of the officers involved in the initial seizure of the Blackberry from the appellant. His investigation was focused on public posting of images of child pornography. The trial judge found that there was “no chance that [this officer] would have been misled by the error in the form.” Relying on the decision of Fairburn J. (as she then was) in R. v. Nguyen, 2017 ONSC 1341, at paras. 115-16, the trial judge applied the principle of severance and found that the use of the Form 5 with outdated language did not render the warrant invalid.
 The appellant argues that the doctrine of severance should not have been applied; rather, a s. 8 breach should have been found and questions about whether the overbroad language actually had any impact or would have caused confusion about the scope of the search authorized should have been considered in the s. 24(2) analysis.
 In some cases, trial courts have applied the doctrine of severance in circumstances involving a Branton error; in other cases, trial judges have declined to sever the offending portion of a warrant: Nguyen, at paras. 115-16; R. v. Nurse and Plummer, 2014 ONSC 1779, at paras 35-39 (affirmed on other grounds without reference to this issue, 2019 ONCA 260, 145 O.R. (3d) 241); R. v. N.M. (2007), 2007 CanLII 31570 (ON SC), 223 C.C.C. (3d) 417 (Ont. S.C.), at paras. 333-36; R. v. Kramshoj, 2017 ONSC 2951; R. v. Persaud, 2016 ONSC 8110. Whether or not severance is an appropriate remedy is a fact-specific analysis.
 In the circumstances of this case, we see no error in the trial judge’s conclusion that the language of “suspected commission or intended commission of an offence” in the Form 5 was severable from the balance of the search warrant and that there was no risk of an overbroad search. In addition to the reasons given by the trial judge, we note Appendix B to the search warrant particularized the offences for which it authorized the seizure and forensic analysis of the Blackberry to completed offences of possession of and making available child pornography in the past. This removed any risk that an officer acting under the warrant would search for evidence of suspected or intended offences.
In R. v. Sureskumar (Ont CA, 2023) the Court of Appeal examines the test for issuance of a searcch warrant, here for a cell phone:
(ii) Warrant to Search the Cell Phone. R. v. Hamouth
 At the outset of her review of the issuance of the warrant to search the appellant’s cell phone, the trial judge quoted R. v. Garofoli, 1990 CanLII 52 (SCC),  2 S.C.R. 1421, at para. 56, and correctly instructed herself that:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In the process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.....
 This court owes deference to the findings of a reviewing judge in their assessment of the record as amplified on the review and their disposition of the s. 8 application. As this court articulated in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89, “Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with a reviewing judge’s decision.”
 The test for reviewing the sufficiency of a warrant application asks “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”: R. v. Vu, 2013 SCC 60,  3 S.C.R. 657, at para. 16. ....
In R. v. Hamouth (Ont CA, 2023) the Court of Appeal considered a Garofoli application:
 The appellant brought a pre-trial s. 8 Canadian Charter of Rights and Freedoms application, claiming that there were insufficient grounds contained in the ITO to support the search warrant that resulted in the seizure of the firearms and ammunition. It was a straight Garofoli application, where the appellant maintained that the information contained in the four corners of the ITO simply did not meet the statutory threshold test for issuance: R. v. Garofoli, 1990 CanLII 52 (SCC),  2 S.C.R. 1421. This meant that the trial judge, acting in his function as a reviewing justice, had to ask whether, based on the record that was before the issuing justice, the warrant could have issued: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65 (CanLII),  2 S.C.R. 992, at para. 51; and R. v. Morelli, 2010 SCC 8,  1 S.C.R. 253, at para. 40.. R. v. Chambers
 Accordingly, the only question for the trial judge was whether there existed sufficient reliable evidence in the ITO, that could reasonably have been believed, upon which the warrant could have issued: Araujo, at para. 54. When applying this test, reviewing justices must remain mindful of the fact that affiants need not state the obvious reasonable inferences that arise from information in an ITO. This is because, whether spelled out or not, it is open to issuing justices to take these inferences into account. Therefore, when determining whether an authorization could have issued, reviewing justices must consider all of the information that was available to the issuing justice, as well as any reasonably available inferences that the issuing justice may have drawn from that information: R. v. Vu, 2013 SCC 60,  3 S.C.R. 657, at para. 16.
 The central question for the issuing justice was whether, based upon the information provided in the ITO, there existed reasonable grounds to believe that evidence of the firearm offences would be located at the home. This did not require proof beyond a reasonable doubt or even proof on a balance of probabilities that the appellant’s son was actually keeping firearms at the home. Rather, it required the application of a standard of “credibly-based probability”: Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC),  2 S.C.R. 145, at pp. 167-68. This threshold is met when reasonable inferences can be taken from the facts disclosed in the ITO: Vu, at para. 16; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. In my view, having regard to all of the information, the trial judge did not err in reaching the conclusion that the issuing justice could have drawn a reasonable, common-sense inference that the appellant’s son was not only in possession of firearms, but that, based on his established connection to the subject residence, he may have been storing them at that location.
In R. v. Chambers (Ont CA, 2023) the Court of Appeal considers when a party has standing to challenge a search warrant:
The appellant lacked standing to challenge the warrant. R. v. El-Azrak
 The appellant argues that the trial judge erred in finding that he did not have standing to challenge the warrant executed at his girlfriend’s apartment. This argument must be rejected.
 Although the trial judge found that the appellant did not have a subjective expectation of privacy in the unit, the real question was whether, even if he did, this expectation was objectively reasonable. On this question, the trial judge cited the applicable law, considered the relevant factors, and found that, having regard to the totality of the circumstances, any such expectation was not reasonable. In coming to this conclusion, the trial judge found that the appellant (i) was not present at the time of the search, (ii) did not have possession or control of the unit, and (iii) had fled to Nova Scotia, thereby abandoning the unit. He found, further, that the tenant (the appellant’s girlfriend) had relinquished the unit to the landlord by the time the search was conducted.
 These findings were open to the trial judge and they amply support his conclusion that the appellant failed to demonstrate an objectively reasonable expectation of privacy in his girlfriend’s apartment at the time of the search. He had no standing to challenge the warrant.
In R. v. El-Azrak (Ont CA, 2023) the Court of Appeal considered Garofoli principles regarding the issuance of a search warrant:
(c) The Garofoli Issue. R. v. Nguyen
 The appellant advances an alternative argument. Even if the police properly came into possession of the OCP information, and therefore nothing needs to be excised from the ITO, she claims that the trial judge erred by concluding that there was sufficient evidence upon which the search warrant could issue.
 Absent an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court must defer to a reviewing justice’s decision under Garofoli: R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal refused,  1 S.C.R. xii. To be sure, reviewing judges work within a small orbit. They must not substitute their opinion for that of the issuing judge: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal refused,  1 S.C.R. ix; Garofoli, at p. 1452.
 The question is not whether the reviewing justice would have issued the warrant. The question is whether the issuing justice could have done so: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65,  2 S.C.R. 992, at paras. 51-52; and R. v. Morelli, 2010 SCC 8,  1 S.C.R. 253, at para. 40. Therefore, the focus of a Garofoli review is on whether there is reliable evidence that might reasonably be believed upon which an authorization could have issued: Garofoli, at p. 1452; Araujo, at para. 51.
 The “reasonable grounds to believe threshold” does not require proof beyond a reasonable doubt or even proof on a balance of probabilities. It requires that the well-known standard of “credibly-based probability” be applied: Hunter, at pp. 167-68; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 81. The question for the issuing justice is whether the ITO sets out sufficient grounds to establish a reasonable belief that an offence has been committed and that there will be evidence of that offence located in the location to be searched. The answer in this case was yes.
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal set out the judicial criteria for the issuance of a general search warrant:
 Section 487.01(1)(b) of the Criminal Code requires that the issuing judge be satisfied that it is in the best interests of the administration of justice to issue the general warrant.. R. v. Nguyen
 This analysis engages two components: consideration of whether the authorization would further the objectives of justice, and a balancing of the interests of effective law enforcement against the individual’s interest in privacy: R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632 (C.A.) at pp. 654-56: R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, leave to appeal refused,  S.C.C.A. No. 460, at para. 118; R. v. Ha, 2009 ONCA 340, 96 O.R. (3d) 751, leave to appeal refused,  S.C.C.A. No. 295, at para. 46.
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal considers 'amplification' of a criminal 'information to obtain' (ITO) a search warrant:
 I agree that amplification was permissible to correct the ITO to state that D.C. Merritt told D.C. Goss the appellant was dealing from 1430 King St. West. The only live dispute is whether D.C. Merritt told D.C. Goss the appellant lived at 1430 King St. West or trafficked drugs from there. The application judge was entitled to prefer the evidence of D.C. Merritt over D.C. Goss on this point. The focus on amplification is whether the police had the information at the time of the application for the search warrant but failed to communicate it due to a failure in drafting: R. v. Araujo, 2000 SCC 65,  2 S.C.R. 992, at para. 59; R. v. Morelli, 2010 SCC 8,  1 S.C.R. 253, at paras. 42-43. Amplification is not restricted to correcting mechanical or typographical errors but extends to failures to communicate what was known by the affiant as a result of want of drafting skill: R. v. Duncan, 2021 ONCA 673, at paras. 14-16.. R. v. Nguyen
In R. v. Nguyen (Ont CA, 2023) the Court of Appeal engaged in an extended Garofoli review of an almost-issued search warrant - demonstrating search warrant concepts such as 'amplification', 'excision', 'facial-invalidity' and 'freezes'.
. R. v. St. Clair
In R. v. St. Clair (Ont CA, 2023) the Court of Appeal considers an appeal from the lower court's dismissal of a Garofoli application (which attempts to challenge the basis of a search warrant), and it's failure to grant a related Charter s.24(1) remedy:
 The appellant submits the application judge erred in upholding the search warrant and dismissing his s. 8 Charter application. He maintains that on the Garofoli review, the application judge should have excised all references to a lost video from the information to obtain (“ITO”) on which the search warrant’s issuance depended and held the warrant to be invalid. He argues that the seized evidence should then have been excluded from his trial. He requests that the convictions be set aside, and acquittals entered.
(1) There was no error in the application judge’s analysis
 The appellant argues that the application judge’s approach to the question of remedy was in error because he failed to apply the long-standing automatic excision rule that requires the excision of unconstitutionally obtained information from the ITO, which stems from a trilogy of decisions from the Supreme Court of Canada: Grant; R. v. Plant, 1993 CanLII 70 (SCC),  3 S.C.R. 281; and R. v. Wiley, 1993 CanLII 69 (SCC),  3 S.C.R. 263. The automatic excision rule instructs, as Watt J.A. reiterated in R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 116, that: “[i]nformation obtained by unconstitutional means must be excised from the ITO on Garofoli review and what remains, as amplified on review, must be assessed to determine whether the warrant could have issued.”
 The appellant argues that the automatic excision doctrine, developed in the context of s. 24(2) Charter applications to exclude unconstitutionally obtained evidence, requires the excision from an ITO of all references to evidence that has become lost contrary to s. 7 of the Charter. He maintains that the unacceptable police negligence in losing the video rendered the video’s use in the ITO unconstitutional and that the police should not be allowed to benefit from their unconstitutional conduct.
 I would not accede to these arguments.
 The application judge’s analytical approach was not flawed. He followed the well-established approach to remedy for lost evidence. As this court explained in R. v. Spackman, 2012 ONCA 905, 300 O.A.C. 14, at para. 112:
Breaches of the Crown’s disclosure obligations that amount to a constitutional infringement do not involve obtaining evidence in an unconstitutional way. As a result, remedies for these infringements fall within the compass of s. 24(1), not s. 24(2)[]. Remedies under s. 24(1) are flexible and contextual. [Citations omitted.] [Emphasis in the original.]See also: R. v. Harrer, 1995 CanLII 70 (SCC),  3 S.C.R. 562, at paras. 42-43.
 Before the application judge, the appellant sought his remedy for the infringement to his s. 7 Charter rights under s. 24(1) of the Charter. Where accused persons claim that their rights to make full answer and defence under s. 7 of the Charter have been breached due to loss or destruction of evidence, the court’s analytical approach is well-defined. The court must (1) determine whether the loss or destruction of evidence was due to unacceptable negligence and results in a breach of s. 7 of the Charter based on an interference with the accused’s right to make full answer and defence; and (2) if there is a s. 7 Charter breach, the court must determine the appropriate remedy under s. 24(1) of the Charter and in making that judgment, the actual prejudice caused to the defence is a significant consideration. See: R. v. Carosella, 1997 CanLII 402 (SCC),  1 S.C.R. 80, at paras. 37, 48; R. v. La, 1997 CanLII 309 (SCC),  2 S.C.R. 680, at paras. 20-23; R. v. Cloutier, 2011 ONCA 484, 278 O.A.C. 331, at para. 71; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at paras. 25, 36.
 Automatic excision is not the sole mandatory or appropriate remedy in lost evidence cases. The range of remedies granted under s. 24(1) of the Charter, including for lost evidence, must remain very broad and flexible in response to the particular circumstances of a given case: R. v. Bjelland, 2009 SCC 38,  2 S.C.R. 651, at paras. 18-19; Ward v. Vancouver (City), 2010 SCC 27,  2 S.C.R. 28, at paras. 17-20. Imposing automatic excision as a mandatory remedy would be incompatible with the wide discretion conferred to trial judges under s. 24(1) of the Charter. As McIntyre J. stated for the Supreme Court in R. v. Mills, 1986 CanLII 17 (SCC),  1 S.C.R. 863, at pp. 965-66: “It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion.”
 The application judge carried out the correct analysis. Having determined that the loss of the surveillance video due to the police’s unacceptable negligence infringed the appellant’s s. 7 Charter rights, the application judge’s focus turned properly to the “remediation of prejudice” to the appellant and the “safeguarding of the integrity of the justice system”: Bjelland, at para. 26. He examined the prejudicial effect of the lost video to the defence and determined that the defence would not be able to properly challenge the observations made by the affiant of the ITO from watching the video that the appellant was “exhibiting the characteristics of an armed person”. As a result, the application judge excised all of the references to the “characteristics of an armed person” from the ITO.
(2) The application judge’s remedy was appropriate
 The appellant argues that even if the application of the automatic excision rule is not mandatory, the application judge should have excised all references to the lost video from the ITO. He says that the application judge failed to do so because he erred in his assessment of DC Sgroi’s evidence and the extent to which it was dependent on his observations from the lost video.
 In my view, the appellant’s submissions do not reach the stringent standard required to amount to a substantive misapprehension of the evidence: Cloutier, at para. 60. The application judge did not misconstrue the affiant’s evidence in any material way. The motion judge, correctly in my view, concluded that DC Sgroi’s belief that there were reasonable and probable grounds to believe that the appellant was in possession of a firearm was not entirely dependent on the lost video but was founded on information gleaned from and corroborated by police surveillance, database research and the screenshot photos.
 The motion judge also noted the minimal importance of the excised information given that DC Sgroi’s assertion about “exhibiting the characteristics of an armed person” was stale information based on a potentially subjective and ambiguous observation. Put otherwise, even if it was left to form part of the basis for the ITO, DC Sgroi’s opinion that the appellant exhibited the characteristics of an armed person would have added little to the reasonable grounds assessment.
 In keeping with his broad discretion under s. 24(1) of the Charter, the application judge was entitled to choose the remedy that he did apply to mitigate the prejudice in the circumstances of this case. As the application judge had the widest possible discretion to fashion an appropriate remedy under s. 24(1) of the Charter, deference is owed to his decision on remedy, unless he misdirected himself or rendered an unjust decision. See Bjelland, at para. 15; R. v. Bellusci, 2012 SCC 44,  2 S.C.R. 509, at paras. 18-19, 30; R. v. Nicholas, 2017 ONCA 646, 40 C.R. (7th) 83, at paras. 56-57. I see no error here.
 The application judge rightly focused on DC Sgroi’s observations in the ITO that the appellant could not directly or fully test without the video. As the application judge noted, the appellant could not directly test the affiant’s observations that he was “exhibiting the characteristics of an armed person”. As a result, he excised those portions of the ITO.
 The application judge properly instructed himself that his role when reviewing the ITO was to determine whether there was sufficient evidence upon which the justice of the peace could have issued the warrant, having regard to the redacted ITO and judicial summary. He appropriately balanced the three factors from R. v. Debot, 1989 CanLII 13 (SCC),  2 S.C.R. 1140, namely, that the CI’s tip was credible, compelling and corroborated, understanding that the strength of one or more of the factors could compensate for the weakness of others. In that respect, he noted that the CI’s credibility was the weakest of the three Debot criteria but determined that it was sufficient as the CI’s information was corroborated and the CI was a carded police informant who had previously provided true and reliable information to the police. His conclusion that there was sufficient evidence to support the issuance of the warrant was amply justified by the record he reviewed, including the detailed and compelling information provided by the CI, as corroborated by the still photos from the lost video, the database and other searches, and the police surveillance.
 There is no basis to interfere with the application judge’s conclusion that the justice of the peace could have issued the warrant, nor with his dismissal of the appellant’s application.